Failure to comply with the legislation on overtime exposes you as an employer to …
- In the event of an industrial tribunal dispute: back pay over 3 years. COGEP AVOCATS alerts its clients to the increasing number of requests for back pay made by employees’ lawyers in relation to overtime and, more generally, non-compliance with the rules on working hours.
For example, a company was ordered to pay its former employee €40,000 for overtime and €4,000 in holiday pay for overtime; €62,000 for hours in excess of the overtime quota and €6,200 in holiday pay for this amount; €11,000 in respect of compensatory rest not taken and €1,100 in rest pay for this amount; €20,000 in damages for concealed work; - An URSSAF adjustment for concealed employment, with the following consequences: payment of contributions over 5 years plus 25% or 40%; cancellation of exemptions from social security contributions; withdrawal and requests for repayment of public subsidies;
- An inspection by the Labour Inspectorate, which may find that there has been undeclared work involving the concealment of salaried employment, with the following consequences: criminal penalties.
… despite their entitlement to preferential social and tax arrangements.
Recommendation from the Social Affairs Department: Declare and pay overtime, hence this 3-step guide to using overtime. But first, a reminder:
What hours are we talking about?
The hours worked at the employer’s request in excess of the statutory 35-hour working week or the hours considered to be equivalent.
Please note: when the employee’s workload is heavy, even if the employer has not asked the employee to work overtime or has refused to do so, these hours may be classed as overtime.
How are they counted?
Except in the case of exceptions exhaustively provided for in the Labour Code (cycle, modulation and JRTT, multi-week organisation, individual timetables, etc.), overtime is deducted from the week (from Monday 0.00 to Sunday 24.00).
Instructions in 3 steps:
When you want to use overtime:
STEP 1: Check the texts you need to comply with:
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Company agreement (if applicable)
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Collective bargaining agreement applicable to your company CCN
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Employment contract
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Usages
STEP 2: Calculate the time actually worked by the employee:
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From weekly monitoring or any other counting period (e.g. annual monitoring in the case of annualisation; by cycle)
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Take the opportunity to check compliance with maximum working hours: 10 hours a day; 44 hours a week on average over 12 consecutive weeks; 48 hours in a single week.
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Check whether or not the HS performed exceed the HS quota (see below).
STEP 3: Declare time off and pay for it either in cash or in time off. Time off must be mentioned on the pay slip.
- The rate of additional pay for overtime can be set freely by company agreement or, failing that, by collective agreement. It may not be less than 10%, regardless of the number of hours worked.
- In the absence of a company agreement or collective agreement, the rates of increase are: 25% from 35 hours to 43 hours inclusive; 50% for subsequent hours.
- Possibility of replacing (totally or partially) the extra pay with an equivalent rest period (25%: 1 hour 15 minutes / 50%: 1 hour 30 minutes).
Conditions: signature of a company agreement or if your CCN provides for it. Failing that, you can make provision for it with the agreement of the CSE, if there is one.
Good to know: you can combine payment and rest.
Caution: The burden of proof is shared. If the employee produces a document transcribing the HS hours he claims to have worked, the employer must be able to respond to this document and in turn produce evidence justifying the hours actually worked by the employee.
What is the overtime quota?
This is an annual limit within which overtime can be worked. The legal limit is 220 hours.
- If overtime is worked within this quota: additional pay or time off in lieu;
- If overtime is worked in excess of this quota: additional pay or compensatory time off in lieu + compensatory time off in lieu:
– A company with fewer than 20 employees: 50% of the time worked as overtime, i.e. 30 minutes per hour.
– A company with more than 20 employees: 100% of the time worked in excess of the quota, i.e. 1 hour/HS.
Caution: Check the CCNs: durations may be lower (130 hours for ETAMs under the CCN SYNTEC) or higher (360 hours for permanent establishments under the CCN HCR).
Good to know : A company agreement can increase the number of hours even if the CCN quota is lower.
Your usual Group contacts will be happy to provide you with any further information.
